Sandpointe Apts. v. Eighth Jud. Dist. Ct., 129 Nev. Adv. Op. 87 (Nov. 14, 2013)

Before the Court en banc. Opinion by Justice Saitta. Justices Cherry and Parraguirre dissented.
In this writ petition, the Court held that NRS 40.459(1)(c), which was added to Nevada’s law by Assembly Bill 273, may not apply retroactively to limit the amount of a deficiency judgment that can be recovered by persons who acquired the right to obtain the judgment from someone else who held that right. The protections of NRS 40.459(1)(c) are therefore only applicable to judicial foreclosures or trustee’s sales occurring on or after the effective date (June 10, 2011) of the statute. Petitioner Sandpointe Apartments, LLC (“Sandpointe”) received a loan from Silver State Bank in 2007 for the construction of an apartment complex. The loan was secured via a deed of trust on the real property and backed by a personal guarantee from Petitioner Stacy Yahraus-Lewis. Silver State Bank closed in 2008 and the Federal Deposit Insurance Corporation (“FDIC”) was appointed as receiver. After Sandpointe had already defaulted on its loan in 2009, the FDIC sold the loan and personal guarantee to Multibank, which then transferred its interest in the loan and guarantee to its wholly owned subsidiary, real party in interest, CML-NV Sandpointe, LLC (“CML-NV”). In early 2011, CML-NV foreclosed on Sandpointe’s loan and purchased the real property securing the loan at a trustee’s sale. Subsequently on June 10, 2011, the Governor signed Assembly Bill 273 into law, which had been unanimously passed by the Nevada Legislature. The relevant provision, codified as NRS 40.459(1)(c), provides that if “the person seeking the [deficiency] judgment acquired the right to obtain the judgment from a person who previously held that right,” then the person seeking the deficiency judgment may only recover “the amount by which the amount of the consideration paid for that right exceeds the fair market value of the property sold at the time of sale or the amount for which the property was actually sold, whichever is greater, with interest from the date of sale and reasonable costs.” CML-NV filed a complaint against Sandpointe and Yahraus-Lewis for deficiency and breach of guaranty on June 27, 2011. At a hearing on cross-motions for summary judgment, the district court concluded that NRS 40.459(1)(c) only applies to loans entered into after June 10, 2011. Thereafter, Sandpointe and Yahraus-Lewis petitioned the Supreme Court for a writ of mandamus or prohibition directing the district court to apply NRS 40.459(1)(c) to CML-NV’s deficiency judgment. Nevada statutes are presumed to operate only prospectively unless the Legislature clearly manifests an intent to apply the statute retroactively or it clearly appears from the statute itself that the Legislature’s intent cannot be implemented in the absence of retroactivity. A statute has retroactive effect when it takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past. The Court held that the right to a deficiency judgment is a vested right as of the date of a trustee’s sale, which is when the amount of a deficiency is fixed. Related statutes, such as NRS 40.462(1), provide that the right to receive proceeds from a foreclosure sale vests at the time of the sale. Thus, the Court found it logical that the right to a judgment for the amount not received in a foreclosure sale would arise, and vest, on the same date as the right to receive amounts received from the sale. Applying NRS 40.459(1)(c) to deficiencies arising from sales prior to the enactment of the statute would affect vested rights and therefore would have an impermissible retroactive effect. An investigation into legislative intent was considered unwarranted by the majority as NRS 40.459(1)(c)’s provision that it becomes effective upon passage and approval is plain and unambiguous. Even if legislative history were consulted though, the majority noted that the author of Assembly Bill 273 stated on several occasions that the legislation could not be applied retroactively. Moreover, the presumption against retroactivity was not considered rebutted simply because the statute would have a broader impact if applied to transactions prior to 2011 as prospective application could still accomplish the legislative intent with respect to many loans. The Court rejected Petitioners’ argument that NRS 40.459(1)(c) is not retroactive because the statute merely clarifies existing law. Although another statute, NRS 40.451, limits a lien amount to the amount of consideration paid, the Court noted that the lien amount is only one factor determining the total amount of indebtedness, which is the figure used to determine the deficiency judgment amount. Additionally, the Court distinguished NRS 40.459(1)(c) as applicable to guarantors unlike NRS 40.451. Justices Cherry and Parraguirre dissented from the majority holding and would have granted the writ petition on the basis that the real party in interest had not yet obtained a deficiency judgment. The dissent argued that NRS 40.459(1)(c) applies at the time that a deficiency judgment is lawfully obtained and that until such judgment, a creditor only has a contingent remedy for potential deficiency and not a vested right. The dissent found persuasive the statement in the Legislative Counsel Digest that the provisions of Assembly Bill 273 would “apply to a deficiency judgment awarded on or after” the effective date and the Legislature’s corresponding declaration in its amicus curiae brief that it intended NRS 40.459(1)(c) to apply to every deficiency judgment awarded on or after the effective date. Noting the policy rationales of stopping profiteering activities and ensuring fairness to all parties to a transaction secured by realty, the dissent criticized the majority opinion for ignoring these objectives and denying protection to borrowers and guarantors who were the intended beneficiaries of the legislation. Petition denied. (Adam Hosmer-Henner, Associate in the Reno office of McDonald Carano Wilson.)

St. Mary v. Damon, 129 Nev. Adv. Op. 68 (Oct. 3, 2013)

Before the Court en banc. Opinion by Justice Saitta.
In this opinion, the Court considered issues relating to the custodial rights over a minor child born to two women who were formerly romantic partners. St. Mary gave birth to a child through in vitro fertilization using Damon’s egg and an anonymous donor’s sperm, and the child’s birth certificate originally listed only St. Mary as the mother; in 2009 Damon obtained an order establishing her maternity and adding her name to the child’s birth certificate. The couple also entered into a co-parenting agreement to share parental responsibilities, participate in child-rearing decisions, and pay for expenses. After St. Mary and Damon split, a dispute arose over St. Mary’s right to custody, visitation and child support. Damon contended that due to her biological connection, she was entitled to sole custody of the child, and in support of this contention, submitted the 2009 order. The Court held that the district court erred in using the 2009 order to conclude that St. Mary was a surrogate lacking any right to parent the child without giving St. Mary an evidentiary hearing. The Court reasoned that the Nevada Parentage Act permits a child to have two legal mothers, and establishes (through both the maternity and paternity provisions) various ways to determine a child’s legal mother. The Court remanded the case with instructions to the district court to conduct an evidentiary hearing on St. Mary’s legal right to parent the child. The Court further held that the co-parenting agreement was not void as unlawful or against public policy, indeed the Court stated that barring the enforceability of a co-parenting agreement simply because the parents were both of the same gender was contrary to the public policy of promoting a child’s best interest with the support of two parents. The Court held that the district court must consider the co-parenting agreement in determining custody should it determine after remand that both St. Mary and Damon are the child’s legal parents. Reversed and remanded for further proceedings. (Megan Starich, Associate in the Reno office of McDonald Carano Wilson.)

Newmar Corp. v. McCrary, 129 Nev. Adv. Op. 67 (Oct. 3, 2013)

Before the Court en banc (Chief Justice Pickering recused). Opinion by Justice Cherry.
In this appeal, the Nevada Supreme Court considered issues arising from a buyer’s revocation of a purchase of a motor home. The Court addressed three issues on appeal: (1) whether the Uniform Commercial Code (UCC) and NRS 104.2608 permit the buyer to revoke acceptance and recover the purchase price from the motor home’s manufacturer; (2) whether the district court properly awarded incidental and consequential damages; and (3) whether the district court abused its discretion in awarding attorney fees. As to the first issue, the Court recognized a split of authorities as to whether privity is required between the purchaser and manufacturer before revocation is available against the manufacturer and expressed concerns with both positions. Ultimately, the Court held that it did not have to select a preferred approach because, here, the manufacturer made direct representations to the buyer, creating privity. Accordingly, the buyer could seek to revoke acceptance as to the manufacturer. The Court further held that incidental and consequential damages were available to the buyer under NRS 104.2719 because the manufacturer’s failed attempts to repair the motor home deprived the buyer of the benefit of the bargain such that no other remedy was available to her. Finally, the Court held that the district court abused its discretion in awarding attorney fees because such fees were not authorized under NRCP 68(f) and NRS 17.115(4). Affirmed in part. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson.)

Khan v. Bakhsh, 129 Nev. Adv. Op. 57 (Aug. 1, 2013)

Before Justices Hardesty, Parraguirre, and Cherry. Opinion by Justice Cherry.
In this appeal from judgment after a bench trial, the Court considered several evidentiary issues dealing with contracts for the sale of real property. First, the Court addressed whether evidence of the terms of an agreement for the sale of property that was written but had been lost or destroyed could be considered without violating the statute of frauds. The Court held that evidence of the existence and terms of the agreement should have been admitted because the statute of frauds was satisfied by the original writing even if that writing was lost or destroyed before trial. Second, the Court addressed the argument that the parol evidence rule barred testimony regarding the fraud used to induce an agreement and testimony regarding the existence of the lost or destroyed agreement. The Court determined that the parol evidence rule does not bar consideration of evidence regarding fraud in the inducement of a contract, to establish subsequent alteration of a contract, or to prove the existence or terms of a written but lost or destroyed agreement. Finally, the Court determined that a liquidated damages provision requiring payment of “150% of actual damages” was an unenforceable penalty. Reversed and remanded. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)

Bielar v. Washoe Health Sys., Inc., 129 Nev. Adv. Op. 49 (July 11, 2013)

Before Chief Justice Pickering and Justices Hardesty and Saitta. Opinion by Justice Hardesty.
In this case, the Court was called upon to interpret Nevada’s pre-2011 charitable health care statue, NRS 439B.260, which requires hospitals to offer at least a thirty percent discount to patients receiving inpatient care who meet certain criteria. Among the eligibility criteria is a requirement that the patient not have health insurance or “other contractual provision for the payment of the charge by a third party.” Appellant Bielar received treatment for injuries due to a car accident and obtained a $1.3 million settlement from the party responsible for her injuries. Washoe Medical, the health center that provided treatment, sought payment of the full amounts of treatment billed and Bielar challenged, arguing that the amounts billed were unreasonable and she was entitled to a thirty percent discount under NRS 439B.260. In the primary issue on appeal, the Court determined that the settlement agreement did not prevent Bielar from qualifying for the thirty-percent discount, holding that a “patient's eligibility for the 30-percent discount is determined at the time of the rendition of the hospital services and a later agreement with a third-party tortfeasor for claims arising out of such services” would not bar application of the discount. Additionally, the Court held that a settlement agreement is not an agreement for the payment of medical charges under the language of the statute even if a portion of the settlement agreement is designated for medical expenses. The Court noted that the 2011 revisions to NRS 439B.260 were consistent with its interpretation. Having agreed with Bielar on the legal issues, the Court reversed the grant of summary judgment on Bielar’s claims for the discount; however, the Court affirmed the district court’s grant of judgment as a matter of law on Bielar’s claims that the charges were unreasonable, concluding that Bielar failed to carry her burden of proof. Reversed in part and remanded. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)

Frei v. Goodsell, 129 Nev. Adv. Op. 43 (July 3, 2013)

Before Justices Hardesty, Parraguirre, and Cherry. Opinion by Justice Parraguirre.
In this appeal from an attorney malpractice action stemming from trust litigation, the appellant raises two unrelated issues stemming from an action to void certain documents that transferred assets among two revocable trusts benefitting the appellant’s and his wife’s children from other marriages. Appellant’s attorney, acting at the instruction of appellant’s agent, who had been appointed as both appellant’s attorney-in-fact and as trustee to appellant’s wife’s trust, prepared certain transfer documents for appellant’s signature. Although the attorney never personally met with appellant, appellant signed the documents, which resulted in the transfer of $1 million of appellant’s assets to his wife’s trust. After his wife’s death, Appellant sought to void the documents and filed a legal malpractice action against his attorney. The first issue concerns whether the district court properly denied a motion in limine to preclude the attorney from arguing that an attorney-client relationship did not exist when the district court had previously determined, in the trust litigation concerning the documents, that such a relationship existed and created a conflict of interest. In resolving this issue, the court applied the four-part issue preclusion test from Five Star Capital Corp. v. Ruby, 124 Nev. 1048, 1052, 194 P.3d 709, 711 (2008), and determined that only the fourth element (whether “the issue was actually and necessarily litigated”) was in dispute. The court concluded that, while the existence of an attorney-client relationship was actually litigated, it was not necessarily litigated. In Nevada, issue preclusion will only apply if a matter was necessary to the prior judgment. Analogizing to a factually similar Massachusetts Supreme Judicial Court decision, the court held that resolving the underlying trust litigation did not depend on whether an attorney-client relationship existed and, therefore, that issue was not necessarily litigated in the trust action and issue preclusion did not apply. The second issue the Court addressed concerned whether the district court properly excluded parol evidence to demonstrate the appellant’s intent in executing the documents that ultimately resulted in the $1 million transfer. Appellant conceded that the documents were unambiguous, but he argued that the documents did not meet his objectives. The Court held that parol evidence is not admissible to demonstrate intent where the language of a document is clear on its face and, therefore, the district court properly excluded the evidence. The Court further reiterated that its statement in Russ v. General Motors Corp., 111 Nev. 1431, 1438-39, 906 P.2d 718, 723 (1995), that a court should consider evidence of intent to determine whether a document is susceptible to interpretation is not the law as it has been discredited in another published opinion as dicta. In a footnote, the Court also stated that it was not clear whether the parol evidence rule should apply at all when a party seeks recovery for legal malpractice and is not seeking to contradict the terms of a document. The Court could not address that that question as it was not properly presented in this appeal. Affirmed. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson).

Galardi v. Naples Polaris, LLC, 129 Nev. Adv. Op. 33 (May 16, 2013)

Before Chief Justice Pickering, Justices Hardesty and Saitta. Opinion by Chief Justice Pickering.
In this appeal, the court examined Nevada law on contract interpretation in determining whether a real estate option contract required the buyer or the seller to remove an encumbrance on the property subject to the contract upon the sale. At issue on appeal was whether the district court properly considered evidence of trade usage to determine that the contract was unambiguous and, therefore, exclude parol evidence. The Court adopted the modern standard regarding trade usage and held that ambiguity in a contract is not required before evidence of trade usage or custom can be used to ascertain or illuminate contract terms. Applying this principle, the Court found that the district court properly deemed an expert’s affidavit regarding trade usage admissible and that the option contract was unambiguous in light of the trade usages established by the expert affidavit. The Court further determined that the seller’s deposition testimony regarding his subjective understanding of the contract’s terms was inadmissible under the parol evidence rule because it contradicted the contract’s express terms, and that the testimony was not relevant to contradict the expert’s testimony on industry usage and custom. Because the seller’s testimony was either inadmissible or irrelevant or both, the Court held it was insufficient to create a genuine issue of material fact to defeat summary judgment, affirming the district court’s grant of summary judgment. Affirmed. (Megan Starich, Associate in the Reno office of McDonald Carano Wilson LLP.)

Sylver v. Regents Bank, N.A., 129 Nev. Adv. Op. 30 (May 2, 2013)

Before Justices Hardesty, Parraguirre, and Cherry. Opinion by Justice Parraguirre.
In this appeal, the Court announced a standard for determining if an arbitration award was obtained through undue means, and addressed whether an arbitrator manifestly disregarded the law by refusing to void a loan transaction. Respondent bank obtained an arbitration award against appellant borrower. In obtaining the award, Respondent used deposition testimony for a key witness whom Respondent represented was unavailable to appear at the arbitration hearing. Both parties examined the witness at a deposition. When Respondent filed a motion in district court to confirm the arbitration award, Appellant offered evidence that Respondent had misrepresented the unavailability of the witness, who actually would have been available and willing to appear at the arbitration hearing. The district court confirmed the award. Appellant challenged the award on appeal, arguing that the award had been obtained using undue means. The Court interpreted the meaning of “undue means” in NRS 38.241 to comport with the federal standard providing that the challenging party faces the burden of establishing by clear and convincing evidence that the other party obtained the award by engaging in intentional misconduct that could not have been discovered with the exercise of due diligence. The Court held that (1) Respondent’s representation about the witness, even if incorrect, did not rise to the level of corruption or fraud required to establish undue mean; (2) the witness’s availability was discoverable through due diligence; and (3) appellant showed no causal connection between the award and the alleged misrepresentation. The second issue on appeal was whether the arbitrator manifestly disregarded the law in refusing to void one of the subject loans, on the grounds that Respondent had never sought a certificate of exemption before engaging in mortgage banking, as required by NRS 645E.910. The arbitrator had noted the failure to obtain a certificate, but recognizing that no civil remedy existed for this statutory violation, held that the unintentional violation had no materiality to the parties’ dispute. On appeal, the court noted that the “manifest disregard” standard does not inquire whether the arbitrator incorrectly interpreted the law, but whether the arbitrator, knowing the law required a particular result, simply disregarded it. Appellant did not meet this “very high hurdle.” The court declined to address the issue of whether the failure to comply with a licensing requirement renders a contract unenforceable, because the operative standard of review in the case did not entail plenary judiciary review. Affirmed. (Mark W. Dunagan, Associate in the Reno office of McDonald Carano Wilson.)

Holcomb Condo. HOA v. Stewart Venture, 129 Nev. Adv. Op. 18 (April 4, 2013)

Before Chief Justice Pickering and Justices Hardesty and Saitta. Opinion by Justice Hardesty.
In this appeal from a 12(b)(5) motion to dismiss, the Court addressed the validity of a contractual provision shortening the statute of limitations to make claims for construction defects. In particular, the Court examined the requirements of NRS 116.4116, which allows parties to agree to shorten the limitations period from six years to no less than two years for breach of warranty claims involving residential common-interest communities, so long as the parties’ agreement is memorialized in a “separate instrument.” The Court joined numerous other jurisdictions in holding that in general, parties may agree to shorten a statutory limitations period, so long as that agreement does not contradict any other statute, and so long as the agreed-upon period is reasonable and does not violate public policy. A limitations period will be considered unreasonable if it “effectively deprives a party of the reasonable opportunity to vindicate his or her rights.” The Court concluded, however, that the district court erred in finding that the arbitration agreement at issue in this case was a “separate instrument” under NRS 116.4116, since the agreement expressly stated that it was part of the purchase contract, and the purchase contract also expressly stated that the arbitration agreement was incorporated into the contract. Finally, the Court held that the district court erred when it dismissed Appellant’s negligence claims as time-barred, since NRS 116.4116 pertains only to breach of warranty claims. Reversed and remanded. (Jeff S. Riesenmy, Associate in the Las Vegas office of McDonald Carano Wilson).

Butwinick v. Hepner, 128 Nev. Adv. Op. 65 (Dec. 27, 2012)

Before the Court en banc. Per curiam opinion.
This opinion arises from respondents’ motion to substitute themselves for appellants, as their successors in interest, and to dismiss the appeal. The underlying action involved claims filed by the respondents (plaintiffs in the underlying action) and counterclaims filed by the appellants (defendants in the underlying action). After trial, the district court entered judgment for the respondents and denied any relief to appellants on their counterclaims. The appellants filed an appeal, but lacked sufficient resources to post a supersedeas bond or obtain a stay. Following trial, the respondents executed on the judgment and ostensibly acquired the appellants’ claims and defenses in the underlying action at a judgment execution sale. Thereafter, the respondents filed a motion seeking to substitute themselves as the successors in interest to appellants along with a motion to dismiss the appeal. In denying the motion to substitute and dismiss in its entirety, the Court clarified that although the “claims” held by appellants could be viewed as “personal property” pursuant to NRS 10.045 and therefore executed upon by the respondents in enforcement of the judgment pursuant to NRS 21.010 and Gallegos v. Malco Enterprises of NV, 127 Nev. ___, ____, 255 P.3d 1287, 1289 (2011); however, the “defenses” held by appellants were not similarly assignable. Because appellants had waived any “claims” by failing to raise those arguments on appeal, the only issues remaining on appeal were “defenses”, which respondents could not acquire and could not dismiss. Motion denied. (David Stoft, Associate in the Las Vegas office of McDonald Carano Wilson.)

Casey v. Wells Fargo Bank, N.A., 128 Nev. Adv. Op. 64 (Dec. 13, 2012)

Before Justices Saitta, Pickering, and Hardesty. Opinion by Justice Pickering.
In this appeal, the Court considered a judgment summarily affirming a motion to confirm an arbitration award under the Uniform Arbitration Act. After receiving an arbitration award, Wells Fargo immediately filed a motion to confirm the arbitration award. Although the 90-day statutory period to challenge the award had not expired, the district court summarily granted the motion to confirm without allowing time to oppose it. The Court determined that this was error, holding that a district court may not confirm an arbitration award while there is still time within the 90-day period to challenge the arbitration award without allowing an opposition to the motion to confirm. There have been very few published cases interpreting the Uniform Arbitration Act and this opinion establishes the answers to some questions in addition to its primary holding. Specifically, the Court made clear that an action to confirm an arbitration award may be initiated by filing a motion to confirm the award and that a party has only ten days to oppose such a motion, despite the fact that it is an initial pleading. The Court left open the other important question of whether non-statutory bases for objecting to an arbitration award may be raised outside of the 90-day period to challenge the award. Reversed and remanded. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)

Grisham v. Grisham, 128 Nev. Adv. Op. 60 (Dec. 6, 2012)

Before Justices Saitta, Pickering, and Hardesty. Opinion by Justice Pickering.
In this appeal, the Court upheld a final divorce decree based upon a written but unsigned property settlement agreement. Respondent and appellant reached a divorce settlement but the final draft contained interlineated handwritten changes and the parties failed to execute a clean copy prior to the prove-up hearing. At the hearing the draft was admitted as an exhibit, the handwritten changes were read into the record, the parties stipulated that the agreement would be binding, and the court approved the stipulation by minute order. Subsequently, appellant refused to sign the final draft of the agreement and challenged the decree approving the agreement. The Court confronted the interesting question of whether in-court proceedings could create an enforceable agreement. The Court held that District Court Rule 16 permits the enforcement of an agreement if it is entered in the court minutes following a stipulation. Applying general principles of contract law, the Court found that appellant had manifested consent to the agreement by his acknowledgement under oath that he had reviewed and agreed to it. The agreement was not invalidated by the district court’s failure to read the entire agreement out loud into the record. Although the Court noted that there may be a case where an in-court proceeding is so truncated by reliance on exhibits that an intent to be bound is absent, the facts before the Court reflected an implied consent that the agreement be entered in the minutes. Finally, the Court noted that a stipulated judgment made in open court satisfies the statute of frauds. Affirmed. (Adam Hosmer-Henner, Associate in the Reno office of McDonald Carano Wilson.)

United Rentals Hwy. Techs. v. Wells Cargo, 128 Nev. Adv. Op. 59 (Dec. 6, 2012)

Before Justices Saitta, Pickering, and Hardesty. Opinion by Justice Hardesty.
In this appeal, the Court considered two issues regarding contractual indemnity clauses: (1) whether the district court erred in finding that a contractual indemnity clause limiting the indemnitor’s duty to defend “to the extent caused in whole or in part by the negligent acts or omissions or other fault of [the indemnitor]” did not require a determination that the indemnitor cause an injury before triggering the duty to indemnify and (2) whether the district court erred in finding that the indemnitor had a duty to defend regardless of the ultimate determination of cause and was entitled to attorney fees in the amount of the defense. As to the first issue, the Court concluded that contractual indemnity clauses containing “to the extent caused” language “must be strictly construed as limiting an indemnitee’s losses only to the extent the injuries were caused by the indemnitor.” Here, because the jury found that the indemnitor was not at fault for the underlying injury at issue in the case, the indemnitor had no duty to indemnify. The Court further held that, for the same reason, the indemnitor was not required to defend the indemnitee for its own negligence where the indemnitor was not found to have caused the injury. Accordingly, the award of attorney fees for defending the underlying action was improper. Reversed. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson.)

Certified Fire Prot. v. Precision Constr., 128 Nev. Adv. Op. 35 (Aug. 9, 2012)

Before Justices Cherry, Gibbons and Pickering. Opinion by Justice Pickering.
In this appeal, the Court clarified the doctrine of quantum meruit, ultimately affirming a district court judgment concluding that there was no express or implied contract and that there had been no benefit conferred on the defendant. The Court explained that quantum meruit “is a cause of action in two fields: restitution and contract.” Essentially, it is a measure of damages that can be used to determine the amount of restitution under the equitable theory of unjust enrichment or an award of damages under the legal theory of implied contract. Relative to an “implied-in-fact” contract, “a party may invoke quantum meruit as a gap-filler to supply the absent term” of the price to be paid for the good or service after it is determined that “the parties intended to contract and promises were exchanged, the general obligations for which must be sufficiently clear.” In affirming the lower court, the Court determined as to appellant “there there was no contract, express or implied, for the design related work standing alone” and “too many gaps to fill in the asserted contract for quantum meruit to take hold.” Moving to the claim as based on “restitution” the Court explained that a litigant “must establish each element of unjust enrichment.” In that regard, the Court required a showing that the respondent received a benefit from the services provided by the appellant, but clarified that a “benefit” is “not confined to the retention of money or property,” it can include “services beneficial to or at the request of the other” and “denotes any form of advantage.” (internal quotations omitted). Because the appellant had not conveyed a benefit to the respondent, the Court affirmed the district court’s conclusion that there had been no unjust enrichment. Finally, the Court addressed respondent’s claim for attorneys’ fees under NRCP 68 and NRS 17.115 or NRS 108.237, the Court determined that it is not necessary for the district court to make express findings as to each of the Beatty factors in using its discretion to award or deny attorneys fees under NRCP 68 and/or NRS 17.115. As to respondent’s request for fees under NRS 108.237, the court affirmed the district court’s denial of those fees despite there being no explicit finding as to the request for fees under NRS 108.237, finding that the record supported a finding that appellant had “a reasonable basis” for its claims. Affirmed. (David J. Stoft, Associate in the Las Vegas office of McDonald Carano Wilson LLP).

Road & Highway Builders v. N. Nev. Rebar, 128 Nev. Adv. Op. 36 (Aug. 9, 2012)

Before Justices Cherry, Gibbons, and Pickering. Opinion by Justice Cherry.
In this appeal, the Court held that a claim for fraudulent inducement is barred as a matter of law if the claim directly contradicts the terms of the written contract. The Court based its conclusion on principles underlying the parol evidence rule and broadly suggested that any claim that is contrary to the written terms of a complete contract would be barred as a matter of law. In addressing compensatory damages for the claims of breach of contract and breach of the covenant of good faith and fair dealing, the Court reiterated that damages for breach of contract should include lost profit or expectancy damages. The Court allowed the award of lost profits for work that had been performed despite the fact that the contract was terminable at will, distinguishing a case that prevented the recovery of lost future profits when a contract is terminable at will. Affirmed in part and reversed in part. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson LLP).